The appellant above-named, being aggrieved by order dated 28th September, 1980 of 11 Court of Rent Controller Karachi, by which respondents application for ejectment of the appellant was allowed, has tiled this appeal on the following facts and grounds :-
1. Respondent has purchased the building situated on plot No. 417, Block 16, Federal 613' Area, Karachi, through a registered sale-deed and the appellant is tenant of respondent in respect of the above said premises, as she was occupying the same as tenant at the time of purchase of that building by the respondent, at a monthly rent of Rs. 200 p. m. Exclusive of water charges etc. It has been alleged, that the respondent requires the premises in case bona fidely and in good faith for his own use. It had also been alleged, that the appellant has failed to pay the rent from April, 1975.
Therefore, respondent has prayed for the ejectment of the appellant from the premises to case.
2. Appellant filed the written statement in which she has denied, that she has committed any default in payment of rent and she has further contended, that respondent does not require the premises in case for his own use.
3. On the pleadings of the parties the following issues were framed :-
(1) Whether the opponent has committed default ?
(2) Whether the applicant requires the property for his own use ?
(3) Whether the opponent has caused damages to the property in case and has impaired the value and utility of the premises in case ?
(4) What should the order be ?
4. On the above issues the respondent has examined himself, while the appellant has examined D.
W. Muhammad Usman and Maqbool Hussain.
5. The learned Rent Controller after taking into consideration the evidence adduced before him, granted respondent's application on ground of personal and bona fide use only, vide his order dated 28th September, 1980. The appellant being aggrieved by impugned order, has preferred this appeal on the grounds mentioned in memo. Of appeal. It may also be noted, that respondent has also filed cross-objections, in the above appeal in respect of rejection of his application for ejectment on ground of default.
6. I have heard the learned Advocates of the parties and have gone through the evidence adduced before the learned Rent Controller as well as through the impugned order and the authorities cited by both the learned Advocates before me.
7. The main contentions that have been urged by the learned Advocate for the appellant before me were-
(a) That property in question was purchased by appellant on 17th December, 1974 and he gave notice Exh. A/3, but did not specify, that the premises were required by him for his personal and bona fide use, but he filed ejectment application on this ground, on 8th May, 1976 and further respondent filed D. W. Application Exh. AJ5 dated 11th May, 1976 for recovery of arrears of rent, which also shows, that this application for ejectment of the appellant, on ground of personal and bona fide use was mala fide. That appellant had also filed Suit No. 413/79, for damages against the respondent which was also dismissed. This also proves the mala fide intentions of the respondent to harass the appellant at all costs.
(b) That learned Rent Controller ought not to have relied upon the solitary evidence of respondent, in respect of his personal bona fide need, in view of grounds mentioned in clause (a) hereinabove.
(c) That offer made by appellant to vacate the premises was conditional and as such the same ought not to have been considered against the appellant.
(d) Cross-objections filed by respondent were not legally maintain--able. The learned Advocate for the appellant in support of his contentions relied upon cases reported in P.LD 1978 Kar. 188 and PLD 1981 Lab. 52.
8. The learned Advocate for the respondent on the other hand submitted, that the learned Rent Controller ought to have allowed respon--dent's application on ground of default as well, beside on personal and bona fide use ground. As far as ground of personal and bona fide use is concerned, the learned Advocate for the respondent submitted, that evidence of respondent was not at all shaken in his cross-examination and in view of respondent's statement on oath, learned Rent Controller was fully justified in accepting the said evidence.
9. In support of his above contentions the learned Advocate for the respondent relied upon cases reported in 1981 CLC 32 7, 1981 CLC 864, 1982 SCMR 1046, 1980 CLC 1561 and PLD 1981 Lab. 326 as well as on cases reported in 1981 SCMR 179, 1980 C L r 1967 and 1981 CLC 179.
10. I have carefully considered the above submissions made by the learned counsel and have gone through the evidence adduced by the parties before the learned Rent Controller as well as through the autho--rities cited by the learned Advocates of the parties.
11. The first contention of the learned Advocate for the appellant, that non-discloser of ground for personal and bona fide use in notice Exh. A/3 by the respondent, soon after the purchase of the disputed property and filing of distress warrant proceedings and suit No. 413/79 for damages after initiating of the above proceedings proves the mala fides intentions of the respondent to eject the appellant at all costs in my opinion has no force, as notice Exh. A/3 was primarily meant under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 to convey the acquisition of the property and filing of distress warrant proceedings for recovery of the arrears of rents and suit for damages alleged to have been caused to the disputed property in no way prove the mala fides of the respondent, in my opinion.
12. The second contention of the learned Advocate for the appellant, that the learned Rent Controller ought not to have relied upon solitary statement of the Respondent, in respect of his personal and bona fide heed also in my opinion has no force. It is now established law, that if the landlord by his statement on oath, with cogent reasons establishes his bona fide need for acquiring possession of his property and establishes, that he has no other suitable premises for the needs of his family in his possession in the same rented area, his evidence is sufficient for grant of his application. In the present case respondent in his statement before the learned Rent Controller stated, that he staying with his father and has only one room in his possession in which he has to stay with his were and grown-up children and furthermore the remaining accommodation in the possession of his father is also not sufficient for his father, and his other family members, who stay with his father remained unshaken in his cross-examination. In fact not a single question was put to the respondent, by which. The facts stated by him were even disputed. I have gone through the statement of the respondent which is convincing and I see no reason to disagree with the- finding of the learned Rent Controller on the basis of the statement of Respondent, that the premises to occupation of the appellant are bona fidely and in good faith required by the respondent for his and his family members personal use. In this, connection, the learned Advocate for the respondent has relied upon cases reported in 1981 CLC 317, 1981 CLC 864, 1982 SCMR 1946, 1980 CLC 1561 and PLD 1981 Lah. 236 which in my opinion fully supports the contention of the learned Advocate for the respondent. In view of this, I see no reason to disagree with the finding of the learned Rent Controller on this issue.
13. The third contention of the learned Advocate for the appellant that the promise for vacating the premises given by the appellant was a conditional promise, on his getting an alternate accommodation and as such ought not to have been considered against him. I agree with this conten--tion of the learned Advocate for the appellant, but even if the learned Rent Controller has taken into consideration this aspect in his judgment but still. After ignoring this aspect, the respondent's evidence on oath relating to his personal needs in my opinion is more than sufficient to establish his ground of personal and bona fide need.
14. The last contention raised by the learned Advocate for the appellant, that the cross-objections filed by the respondent are not legally maintainable, on the basis of the cases reported in PLD 1978 Kar. 138 and PLD 1981 Lah. 52, in my opinion is misconceived. In fact these cases cited by the learned Advocate for the appellant also show, that the landlord could support the order of ejectment on the grounds which were rejected by the learned Rent Controller, if he can from the evidence on record establish such grounds, without filing even cross objections. In the present case in para. 6 of the written statement the appellant has clearly stated, that the arrears of rents accumulated, as the Respondent had agreed not to charge rent, till he found alternate accom-- modation for him and the filing of D. W. Proceeding Exh. A/5 clearly shows, that appellant was defaulter in payment of rents as alleged in the ejectment application. The only explanation given by the appellant is in his para. 6 of his written statement which fact has been denied by the respondent in his statement on oath. In view of this the question which requires consideration is whether appellant was a wilful defaulter or he did not pay the rent from May, 1975 to April, 1976 on account of alleged arrangement between the parties. In this connection I have gone through the Exh. A/6 the objection filed by the appellant to the D. W. In question and finding that no such plea was, taken in the said objec--tion and as such it is obvious, that this plea taken in para. 6 of the written statement is an afterthought and as such it cannot be accepted. In view of this I am of the opinion, that the respondent was also entitled to grant of ejectment on the ground of default from month of May, 1975 till April, 1976 in respect of the period mentioned in D. W. Application No. 431/1976 Exh. A/5. However, since there was a dispute in respect of the quantum of rent and the same has not been determined by the learned Rent Controller by his order dated 29th September, 1980, it would not be fair to allow the ejectment application of the Respondent on this ground and as such I reject this contention of the learned Advocate for the Respondent as well as his arguments that appellant caused damage to his property, as there is no convincing evidence on this account, on the record.
15. In view of my above conclusions and findings, I dismiss the above appeal. However I allow appellant four months time to vacate the premises in his occupation and hand over its vacant possession to the respondent, provided he continues to deposit monthly rent for the said period in accordance with the tentative order of the learned Rent Controller. In view of the facts and circumstances of the case I would pass no order as to costs.